The Yucca Mountain fracas last week became more intense as the National Association of Regulatory Utility Commissioners (NARUC) joined a coalition of state and local governments in a suit against the Nuclear Regulatory Commission (NRC). The petitioners claim the agency is “unreasonably delaying” a decision on the proposed—and now-defunct—permanent spent nuclear fuel repository in Nevada.

At issue is the Department of Energy’s (DOE’s) license application submitted to the NRC in June 2008 to begin construction of the repository in Yucca Mountain. The Nuclear Waste Policy Act (NWPA) requires the NRC to make a determination on the application within three years, NARUC said. “Although DOE has since sought approval to withdraw its application, the law remains unchanged.”

NARUC joined the suit with the states of South Carolina and Washington, and local governments from Nevada, parties that are asking the U.S. Court of Appeals for the District of Columbia Circuit to compel the NRC into acting on the Yucca Mountain proposal.

The group claims that the NWPA requires the NRC to determine whether Yucca Mountain is safe for the storage of spent-nuclear fuel, and it alleges in its lawsuit that the “NRC is flouting its statutory obligations.”

NARUC and the coalition filed the suit after the D.C. Court of Appeals dismissed a similar lawsuit against the DOE’s withdrawal application. In that case, the court determined that because the NRC has not acted on the department’s request, the court had nothing to review. Instead, it noted that the NWPA allows the agency three years to review the 2008 Yucca application, and that deadline has since passed.

“Although the NWPA mandates that the NRC ‘shall consider’ the license application, NRC has unreasonably and unlawfully withheld its consideration by (a) withholding its decision regarding DOE’s motion to withdraw [the Yucca application], and (b) terminating its staff’s technical review of the license application and allowing effective suspension of the adjudication before” the agency’s Atomic Safety Licensing Board, NARUC said.

“We do not take this action lightly, but given the NRC’s actions contrary to the plain reading of the law, we feel we have no other option,” said NARUC President Tony Clark of North Dakota. “We join our State and local colleagues from Washington, South Carolina, and Nevada in urging the court to require the NRC to act. We are hopeful that the NRC will not ignore a court order as it is ignoring congressional intent.”

The body representing the interests of state public utility commissions before the federal government, earlier this year filed a lawsuit against the DOE for not suspending fees associated with the repository. That suit, also filed with the U.S. Court of Appeals for the District of Columbia Circuit, alleges that the DOE failed to comply with the Nuclear Waste Policy Act (NWPA) of 1982, a law that authorizes the agency to charge nuclear power companies 1 mill (1/10 cent) per kilowatt-hour for developing the storage facility.

“To date, the nation’s nuclear-power consumers have contributed approximately $31 billion, including interest, into the Nuclear Waste Fund since 1983,” NARUC had then said in a statement. “This amounts to approximately $770 million a year.”

Sources: POWERnews, NARUC, DOE